Smith v. Peck

HARRISON, J.

Ida M. Gusha recovered a judgment in the justice’s court of township Ho. 2 of the county of Placer, May 19, 1894, against the Columbia Gold and Silver Mining Company. March 21, 1895, she signed and acknowledged an assignment of this judgment to the plaintiff herein, which was received hy him about a week thereafter. April 1, 1895, the amount of the judgment (three hundred and fifteen dollars and sixty-eight cents) was paid to the defendant Peck, who was at that time the justice of the peace for that township, and a satisfaction of the judgment was then entered by him on the margin of the case. The plaintiff had on March 25th informed the justice that he was the owner of the judgment, ¡but he did not present any assignment of it or any evidence of his ownership other than his verbal statement. Upon the defendant’s refusal to pay to the plaintiff the moneys so received hy him, the plaintiff brought the present action for its recovery. The cause was tried hy the' court without a jury, and findings of fact made hy it in accordance with averments in the defendant’s answer to the effect that the judgment creditor had sold and assigned the judgment to one Hartley prior to her aforesaid assignment to the plaintiff, and that the satisfaction of the judgment had been

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made at the instance of Hartley. Judgment was accordingly entered in favor of the defendants. The plaintiff has appealed.

The question involved in the appeal is the ownership of the judgment. If Hartley had become its owner prior to the assignment to the plaintiff, the plaintiff was not authorized to recover from the defendant the money which had been paid for its satisfaction. In support of the averment that Hartley was such owner, it was shown that Mrs. Gusha resided in North Bangor, in the state of Maine, and that on March 11, 1895, Hartley sent her the following telegram to that.plaee: “For two hundred dollars cash will you assign your claim and take me for balance? Answer quick. B. F. Hartley.” On March 13th Hartley received from her the following reply by telegraph: “To B. F. Hartley, Auburn, Cal. Will assign claim for two hundred dollars cash, you for balance. 'Send by draft on any ¡N. Y. bank. Ida M. Gusha.” On the same day Hartley replied to her by telegraph as follows: “To Ida M. Gusha, North Bangor, Maine. All right. Sign papers mailed you by Botenson and return. B. F. Hartley." On March 16th Hartley procured from the Placer County Bank, and forwarded to her by mail, a draft on a banking house in New York in her favor for the sum of two hundred dollars. On the same day he sent to her the following telegram: “Have forwarded you New York draft for two hundred dollars. B. F. Hartley.” Mrs. Gusha, upon the receipt of this communication, wrote to Hartley that since her arrangements with him she had had a better offer from a man by the name of Smith, in Oakland, and would do business with him instead of Hartley, and inclosed the papers made out by Bobinson, and returned the draft without having collected it.